DOJ Amicus 2-2-11

Case: 10-3824 Document: 003110427076 Page: 1 Date Filed: 02/02/2011
No. 10-3824
IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________________________
STUDENT DOE 1, et al.,
Plaintiffs-Appellants
v.
LOWER MERION SCHOOL DISTRICT,
Defendant-Appellee
__________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________
BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE URING AFFIRMANCE
_________________________________
CHARLES P. ROSE THOMAS E. PEREZ

General Counsel for the Assistant Attorney General
Department of Education SAMUEL R. BAGENSTOS
Principal Deputy Assistant
Attorney General
MARK L. GROSS
ERIN H. FLYNN
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, DC 20044-4403
(202) 514-5361
TABLE OF CONTENTS
PAGE
STATEMENT OF THE ISSUE ................................................................................. 1
INTEREST OF THE UNITED STATES .................................................................. 2
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT OF FACTS ........................................................................................3
1. Facts ......................................................................................................3
2. District Court Proceedings ................................................................... 8
STANDARD OF REVIEW .....................................................................................12
SUMMARY OF ARGUMENT ...............................................................................13
ARGUMENT
LOWER MERION’S SCHOOL ASSIGNMENT

PLAN IS NOT SUBJECT TO STRICT SCRUTINY
AND SATISFIES APPROPRIATE CONSTITUTIONAL
SCRUTINY ...................................................................................................14
A. School Assignment Plans That Rely In Part

On Neighborhood Racial Demographics To
Promote Diversity And Avoid Racial Isolation
Do Not Demand Strict Scrutiny ................................................14
1. Parents Involved Distinguished Between

Classifying Individual Students By Race
And Other Race-Conscious Measures To
Promote Diversity And Avoid Racial
Isolation ..........................................................................14
2. Neither Arlington Heights Nor Pryor

Demands Strict Scrutiny Here ........................................21
TABLE OF CONTENTS (continued): PAGE
B. Lower Merion’s Assignment Plan Is Not Subject

To Strict Scrutiny ......................................................................26
1. The Plan Does Not Use Race To Assign

Individual Students To Schools.......................................26
2. Lower Merion Used Routine Assignment

Principles To Develop Its Zone-Based Plan
And Considered Race Only To Assess The
Impact Of Various Alternatives On The Education
Offered To Its Students ...................................................27
CONCLUSION ........................................................................................................32
CERTIFICATE OF BAR MEMBERSHIP
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
-ii-
TABLE OF AUTHORITIES
CASES: PAGE
Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995).......................................................................................24
Bush v. Vera, 517 U.S. 952 (1996) ..........................................................................25
City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989).......................................................................................24
Gratz v. Bollinger, 539 U.S. 244 (2003) ...........................................................24, 27
Grutter v. Bollinger, 539 U.S. 306 (2003).........................................................20, 24
Hunt v. Cromartie, 526 U.S. 541 (1999) .................................................................22
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) ...................................................13
McCutcheon v. America’s Servicing Co.,

560 F.3d 143 (3d Cir. 2009) ..........................................................................12
Miller v. Johnson, 515 U.S. 900 (1995) ............................................................22, 25
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007)................................................................................passim
Personnel Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979).......................................................................................23
Pryor v. National Collegiate Athletic Ass’n,

288 F.3d 548 (3d Cir. 2002) .............................................................. 10, 22-24
Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978).......................................................................................27
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) ...........................................22
Rogers v. Lodge, 458 U.S. 613 (1982) ....................................................................25
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CASES (continued): PAGE
Shaw v. Reno, 509 U.S. 630 (1993) .........................................................................25
Storey v. Burns Int’l Sec. Servs.,

390 F.3d 760 (3d Cir. 2004) ..........................................................................12
United States v. Hays, 515 U.S. 737 (1995) ............................................................25
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252 (1977).................................................................................10, 22
White v. Regester, 412 U.S. 755 (1973) ..................................................................25
STATUTES:
Civil Rights Act of 1964,

42 U.S.C. 1981.................................................................................................3
42 U.S.C. 2000c-6 ...........................................................................................2
42 U.S.C. 2000d...............................................................................................2
No Child Left Behind Act of 2001,

20 U.S.C. 6301......................................................................................... 18-19
20 U.S.C. 6301(1)-(4) ....................................................................................19
20 U.S.C. 6311(b)(2)(C)(v) ...........................................................................19
20 U.S.C. 6311(h)(1)(C)(i) ............................................................................19
20 U.S.C. 6311(h)(2)(B) ................................................................................19
20 U.S.C. 7231-7231j ..............................................................................................19
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IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________________________________
No. 10-3824
STUDENT DOE 1, et al.,
Plaintiffs-Appellants
v.
LOWER MERION SCHOOL DISTRICT,
Defendant-Appellee
___________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
___________________________________
BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE URGING AFFIRMANCE
___________________________________
STATEMENT OF THE ISSUE1
Whether strict scrutiny applies to a zone-based school assignment plan that
does not assign individual students to elementary and secondary schools on the
basis of the student’s race, where school officials considered the racial impact of
various zoning alternatives alongside numerous non-racial factors when
developing the plan.
1
Our brief addresses only the judicial review of plaintiffs’ equal protection
claim.
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INTEREST OF THE UNITED STATES
The United States has significant responsibilities for the enforcement of the
Equal Protection Clause of the Fourteenth Amendment in public education, see 42
U.S.C. 2000c-6, and for the enforcement of Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d, which prohibits discrimination on the basis of race or
national origin by recipients of federal financial assistance. The United States
Department of Education has responsibility for ensuring Title VI compliance, and
also issues guidance documents and letters under Title VI regarding the
permissible use of race in student assignment. Nearly every school district in the
United States accepts federal funds and therefore is subject to Title VI. The United
States thus has a significant interest in the resolution of the issue presented.
STATEMENT OF THE CASE
Plaintiffs are nine African-American students (and their parents) who attend
public school in Lower Merion School District (Lower Merion). A2. In January
2009, following a capital improvement program that necessitated equalizing
enrollment at Lower Merion’s two high schools, the school board adopted a zone-
based plan (Plan) that reassigned about 350 students from Lower Merion High
School (LMHS) to Harriton High School (HHS). A13, A46. Under the Plan,
plaintiffs lost the option to attend LMHS. A40-A43.

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Plaintiffs brought this action, alleging that the Plan violates the Equal
Protection Clause, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and
42 U.S.C. 1981 and seeking to restore plaintiffs’ choice of schools. A124-A141.
After a bench trial, the district court upheld the Plan and entered judgment in favor
of Lower Merion. A93-A95.
STATEMENT OF FACTS
1. Facts
A. Lower Merion has six elementary schools, two middle schools, and two
high schools. A6. In 1997, Lower Merion embarked on a capital improvement
program to modernize its schools. A12. In 2004, the school board adopted the
program committee’s proposal to renovate the two high schools and balance
enrollment at 1250 students per school. A12-A13. Pre-renovations, LMHS had
approximately 1600 students and HHS had approximately 900 students. A12.
Equalizing high school enrollment allowed students at each school to benefit from
increased faculty-student interaction and equal course offerings, co-curricular
activities (clubs, teams, etc.), and facilities. A13. It also took advantage of
existing real estate, and alleviated traffic and parking problems at LMHS. A13.
Plaintiffs have not alleged that racial considerations motivated the decision to
equalize high school enrollment. A124-A141.

-4-
The decision to equalize high school enrollment forced Lower Merion to
rezone about 350 students from LMHS to HHS. A13. The rezoning process was
complicated by the fact that the overwhelming majority of the school district’s
students live much closer to LMHS than HHS. A51 n.22, A2127 (map). Prior to
reassignment, African-American students comprised approximately 5.7% of
HHS’s student population and 13% of LMHS’s student population; African-
American students comprise approximately 10% of the district-wide high school
population. A13.
B. In April 2008, the school board adopted five “non-negotiables,” or
mandatory criteria, for rezoning students: middle and high school enrollments
would be equalized; elementary students would be assigned to avoid
overcrowding; the number of buses would not increase; high school students could
stay in their present high school; and assignments would be based on current and
anticipated needs. A15-A16. No criterion discussed race or African-American
student assignments. A15-A16. In May 2008, Lower Merion hired consultants to
identify those “community values” that should be considered in the reassignment
process. A16-A17. After conducting public forums and collecting online surveys,
(A16) the consultants concluded that important values included being able to walk
to school, reducing travel time for non-walkers, and “explor[ing] and cultivat[ing]
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whatever diversity—ethnic, social, economic, religious, and racial—there is in
Lower Merion.” A17 & n.9.
Between June and September 2008, school officials developed six
assignment plans, choosing one to present at a public school board meeting as Plan
1. A19-A27. The Board rejected Plan 1 because it resulted in excessive travel
times for rezoned students. A32. Rejection of Plan 1 led to the creation of three
additional plans (Plans 2, 3, and 3R), developed serially after each public Board
meeting. A19-A20. All plans attempted to equalize high school enrollment while
taking into account travel time to HHS and some level of peer continuity (e.g.,
assigning elementary school classmates to the same middle school or middle
school classmates to the same high school). A32-A33. Over time, members of the
public stressed the importance of a plan that allowed many students to walk to
school, and to transition to middle and high school with the same peers. A34, A40.
Thus, in addition to equalizing overall high school enrollment and minimizing
travel times, the plans increasingly emphasized retention of the school district’s
walk zones, and K-12 peer continuity. A34, A40.
In developing the plans, school officials compared each high school’s
projected enrollment by race, ethnicity, socioeconomic score, and the number of
students with individualized education programs. A20, A28. Five of the six
earliest plans equalized enrollment while tracking the total number of African-
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American students anticipated at each high school as a percentage of the overall
student body. A22.
Lower Merion’s African-American students are geographically concentrated
in a neighborhood known as Ardmore. A10 & n.2. In considering the impact of
the various plans, school officials became reluctant to assign both North and South
Ardmore to the same high school; because Ardmore had the highest residential
concentration of African-American students in the district, assigning the entire
neighborhood to one high school would leave only a very small number of
African-American students at the other school. A24. In addition, assigning both
North and South Ardmore to LMHS prevented school officials from equalizing
enrollment at 1250 students per school unless residential areas farther away from,
and with longer bus rides to, HHS were rezoned to HHS. A39, A42 (map), A87.
Because each plan increased the level of racial diversity at HHS, (A21) school
officials faced criticism at every public Board meeting from some minority parents
who felt that their neighborhoods were being rezoned for racial and ethnic reasons.
A31-A32, A34, A40.
C. In January 2009, the Board adopted Plan 3R. A46. The Plan primarily
assigns students to schools according to two feeder patterns that attempt to
equalize high school enrollment while fostering K-12 peer continuity. A38-A42.
The Plan contains two exceptions to the feeder patterns. First, any student zoned
-7-
to LMHS can attend HHS for its special academic programs, which include the
International Baccalaureate (IB) program and a partnership with Penn State. A43,
A194. Second, any student zoned to HHS who resides in the “official, historic
LMHS walk zone” can attend LMHS. A43, A44 n.21. The “walk zone”
immediately surrounds LMHS and encompasses students who live less than a mile
from LMHS and are not bused to school. A14. The Plan zones students as
follows:
 Students attending Gladwyne, Belmont Hills, and Penn Valley Elementary

Schools attend Welsh Valley Middle School and HHS. Students living in
the LMHS walk zone can attend LMHS.
 Students attending Penn Wynne, Cynwyd, and Merion Elementary Schools

attend Bala Cynwyd Middle School and LMHS. Students assigned to
LMHS can elect to attend HHS.
A194-A195, A223. Under the Plan, all students stay with their elementary and
middle school peers for high school unless they opt out of their assigned feeder
pattern to walk to LMHS or to attend HHS’s special academic programs. A194.
Lower Merion assigned Penn Wynne Elementary School (which includes
North Ardmore students) to LMHS, and Penn Valley Elementary School (which
includes South Ardmore students) to HHS. A42. Under the Plan, students in three
areas—Northwest Penn Valley, South Ardmore, and North Narberth—can no
longer attend LMHS because they (a) attend an elementary school in the HHS
feeder pattern and (b) live outside of the LMHS walk zone. A14, A50, A195.
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While students in all three areas previously had the choice of attending LMHS,
they are all now zoned to HHS. A50, A54. Unlike the students in South Ardmore,
the student population in the other two areas is predominantly white. A50, A246.
In the first year under the Plan, African-American students comprised 8.25%
of HHS students and 12.6% of LMHS students. A50. These percentages include
students who moved voluntarily between schools on account of the walk zone
option, limited grandfathering provision, and special academic programs. A50.
2. District Court Proceedings
A. The district court held a bench trial focused on the manner in which
Lower Merion considered race in developing the Plan. A3. The court found that
Lower Merion rezoned students because of the capital improvements that increased
student capacity at HHS and reduced student capacity at LMHS. A13. The court
also found that school officials developed and recommended the plans based on
many legitimate educational factors, including “helping students achieve
educational excellence, attaining equal student populations at the two high schools,
minimizing travel time, developing the 3-1-1 feeder pattern, and also closing the
achievement gap that [school officials] perceived to exist between African-
American and white students.” A51.
As to school officials’ consideration of the projected racial demographics of
each high school as one factor among many in recommending various zone-based
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plans, the district court found that in addition to achieving “overall numeric
equality,” (A53) the plans “reflect[ed] a specific concern about the African-
American student population” (A23). The court also found that Lower Merion’s
use of race followed sound educational policies. A53.
While the district court found that school officials who drew up the plans
allowed neighborhood racial demographics to influence to some respect which
plans they presented to the Board, the court found that Board members were
unaware of the role racial considerations had played in formulating the plans. A3.
The court found that the Board did not vote for the Plan based on racial grounds;
rather, Board members voted for or against the Plan based on whether they
believed K-12 peer continuity outweighed dividing a few neighborhoods into
separate feeder patterns. A47-A50. The court credited Board members’ testimony
that racial considerations did not influence their votes. A55.
The court then ordered the parties to brief the applicability of Parents
Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701
(2007), in light of the court’s findings of fact. A56-A57.
B. On June 24, 2010, the district court upheld the Plan. A64. The court
stated that a basic principle underlying the case was that “pure ‘racial balancing’ at
the high school level, standing alone, would be improper, but that considering
racial demographics alongside numerous race-neutral, valid educational interests

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* * * has never been held unconstitutional.” A66. The court also stated that the
Plan did not use individual racial classifications to assign students to schools. A69.
In determining the level of scrutiny to apply, the court stated that each of the
Supreme Court cases applying strict scrutiny that Plaintiffs cited was
distinguishable, thus “indicating that strict scrutiny may not be the operative
standard to evaluate the constitutionality of [the Plan].” A68-A69. The court
stated that in Parents Involved, the Supreme Court had repeatedly emphasized that
the school districts had relied on the race of individual students in making
assignment decisions and ruling on transfer requests. A70. The district court
concluded that because Plan 3R did not use individual racial classifications, it
“falls outside the facts and holding of Parents Involved, and is not subject to strict
scrutiny in light of Parents Involved.” A72.
The district court then analyzed Lower Merion’s actions under this Court’s
decision in Pryor v. National Collegiate Athletic Ass’n, 288 F.3d 548 (3d Cir.
2002), and under Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977). A76-A80. The district court questioned
the applicability of Pryor in light of Parents Involved, stating that the Supreme
Court’s “focus on applying strict scrutiny to * * * individual racial classifications
calls into question whether Pryor’s pronouncement on the broad applicability of
strict scrutiny to policies motivated in part on race, applies to student assignment

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plans that do not involve individual racial classifications.” A77-A78 n.6. Yet the
district court felt bound to apply Pryor as Circuit precedent. A77.
The district court stated that under Pryor, strict scrutiny applied if race was a
motivating factor in the school district’s reassignment plan, and that, in order to
avoid strict scrutiny, Arlington Heights required school officials to show they
would have implemented the same plan absent any consideration of race. A77,
A80. The district court concluded it would apply strict scrutiny, noting that if
Lower Merion satisfied that standard, it would also survive intermediate scrutiny
and rational basis review. A80-A81.
The court reasoned that because the Plan (a) aimed to satisfy the
“compelling educational interests” of equalizing high school enrollment,
minimizing travel time and transportation costs, fostering peer continuity, and
promoting walkability, and (b) was the only plan that simultaneously met these
goals, the Plan was narrowly tailored and survived strict scrutiny. A83. The court
emphasized that “[a]n opposite conclusion is not warranted by the mere fact that
[school officials] considered the racial demographic makeup of [South Ardmore]
during redistricting.” A83-A84. According to the court, North and South Ardmore
were “natural candidates for redistricting” because of their proximity to HHS;
rezoning South Ardmore also promoted K-12 peer continuity. A87-A89. Thus,
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the court concluded that South Ardmore “would have been selected for
redistricting regardless of its demographic makeup.” A89.
The court also addressed school officials’ use of racial demographics to
assess the merits of certain plans, and concluded that school officials considered
the racial impact of the plans alongside numerous non-racial objectives. A92. The
court stated that school officials took race into account only to address the
achievement gap between African-American students and their peers, and the
racial isolation African-American students experience when their classes contain
only a few students of their race. A53, A91. The court held that “the mere fact
that [school officials] considered racial demographics in redistricting students * * *
does not render * * * Plan 3R unconstitutional. [Lower Merion] has established
that Plan 3R would still have been adopted even had racial demographics not been
considered.” A92-A93. The court held that the Plan survived strict scrutiny and
was therefore constitutional. A93.
STANDARD OF REVIEW
This Court reviews the district court’s factual findings for clear error and its
legal conclusions de novo. McCutcheon v. America’s Servicing Co., 560 F.3d 143,
147 (3d Cir. 2009). This Court may affirm the district court’s decision on alternate
grounds, provided the record supports the judgment. Storey v. Burns Int’l Sec.
Servs., 390 F.3d 760, 761 n.1 (3d Cir. 2004).

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SUMMARY OF ARGUMENT
Lower Merion’s school assignment plan must be analyzed under Parents
Involved, the most recent Supreme Court decision to address the use of race in
elementary and secondary school assignments. The majority in Parents Involved
applied strict scrutiny to two student assignment plans that relied on racial criteria
to assign individual students to schools; it did not hold, however, that strict
scrutiny applies whenever a school district considers the racial impact of a school
assignment plan. Rather, as Justice Kennedy, who provided the critical vote to the
majority holding, recognized in his opinion concurring in part and concurring in
the judgment, a race-conscious school assignment plan is not likely to demand
strict scrutiny if it does not use individual racial classifications to provide students
the educational benefits of racially diverse schools.2
Lower Merion rezoned students primarily to equalize high school
enrollment, minimize travel times, and foster K-12 peer continuity. School
officials considered race incidentally and in a non-individualized way in an effort
2
Justice Kennedy’s concurrence addressed race-conscious measures to
promote diversity and avoid racial isolation, not to segregate students. That
context is critical to his statement that strict scrutiny is unlikely to apply where
school districts consider the racial impact of their general policies. This appeal
arises in such a context, and thus differs significantly from a school district’s
efforts to segregate students on the basis of race. See, e.g., Keyes v. School Dist.
No. 1, 413 U.S. 189 (1973).
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to promote diversity and reduce racial isolation at HHS. Accordingly, strict
scrutiny does not apply, and the Plan satisfies constitutional standards.
ARGUMENT
LOWER MERION’S SCHOOL ASSIGNMENT PLAN IS NOT SUBJECT

TO STRICT SCRUTINY AND SATISFIES APPROPRIATE
CONSTITUTIONAL SCRUTINY
A. School Assignment Plans That Rely In Part On Neighborhood Racial

Demographics To Promote Diversity And Avoid Racial Isolation Do Not
Demand Strict Scrutiny
1. Parents Involved Distinguished Between Classifying Individual

Students By Race And Other Race-Conscious Measures To Promote
Diversity And Avoid Racial Isolation
a. In Parents Involved, the Supreme Court addressed whether school
districts in Seattle, Washington, and Jefferson County, Kentucky, could voluntarily
rely on the race of individual students to determine which public schools those
students could attend. See 551 U.S. at 709-710. In Seattle, rising ninth graders
ranked district high schools in order of preference. See id. at 711. For
oversubscribed high schools, the school district employed a series of “tiebreakers,”
first selecting students with a sibling in the school, next selecting students
according to how their individual race affected the racial composition at designated
schools, and then selecting any remaining students based on their geographic
proximity to the school. Id. at 711-712. Similarly, Jefferson County made
elementary school assignments and transfer decisions based in part on whether an

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individual student would disrupt the school’s “black/other” racial guidelines. Id. at
710, 716-717. Both school districts took account of the race of individual students
in an effort to overcome residential segregation and promote diversity. See id. at
712, 716-717.
In the portion of Chief Justice Roberts’ plurality opinion that Justice
Kennedy joined to create a majority holding, the Court stated that both assignment
plans were subject to strict scrutiny because they assigned some students to schools
on the basis of an individual student’s race. See Parents Involved, 551 U.S. at 720.
While the Court disagreed on the extent to which school districts can rely on either
express racial criteria or racial considerations to promote K-12 student body
diversity, compare id. at 726-732 (plurality) with id. at 783-789 (Kennedy, J.,
concurring) and id. at 834-845 (Breyer, J., dissenting), Justice Kennedy agreed
with the plurality that neither school district had provided sufficient evidence to
show that assigning students to schools based on the individual student’s race was
necessary to achieve racial diversity. See id. at 733-735.
b. While Justice Kennedy agreed with the plurality that the specific plans at
issue failed strict scrutiny on narrow tailoring grounds, he rejected what he viewed
as the plurality’s suggestion that “the Constitution requires school districts to
ignore the problem of de facto resegregation.” Parents Involved, 551 U.S. at 788
(Kennedy, J., concurring). Significant to the issue on appeal here, Justice Kennedy
- 16 -
explained that school districts may in some instances consider racial demographics
without triggering strict scrutiny:
In the administration of public schools by the state and local

authorities it is permissible to consider the racial makeup of schools
and to adopt general policies to encourage a diverse student body, one
aspect of which is its racial composition. * * * If school authorities
are concerned that the student-body compositions of certain schools
interfere with the objective of offering an equal educational
opportunity to all of their students, they are free to devise race-
conscious measures to address the problem in a general way and
without treating each student in different fashion solely on the basis of
a systemic, individual typing by race.
School boards may pursue the goal of bringing together

students of diverse backgrounds and races through other means,
including strategic site selection of new schools; drawing attendance
zones with general recognition of the demographics of
neighborhoods; allocating resources for special programs; recruiting
students and faculty in a targeted fashion; and tracking enrollments,
performance, and other statistics by race. These mechanisms are race
conscious but do not lead to different treatment based on a
classification that tells each student he or she is to be defined by race,
so it is unlikely any of them would demand strict scrutiny to be found
permissible. * * * Executive and legislative branches, which for
generations now have considered these types of policies and
procedures, should be permitted to employ them with candor and with
confidence that a constitutional violation does not occur whenever a
decisionmaker considers the impact a given approach might have on
students of different races. Assigning to each student a personal
designation according to a crude system of individual racial
classifications is quite a different matter; and the legal analysis
changes accordingly.
Id. at 788-789 (citations omitted and emphasis added).
Thus, reflecting concern for the special harms imposed by state action that
subjects individuals to different treatment based on individual labeling by race,

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Justice Kennedy would apply strict scrutiny to assignment plans that rely on the
race of individual students to achieve racially diverse schools. See Parents
Involved, 551 U.S. at 783; see also id. at 719, 746 (plurality) (describing race-
based harms). However, Justice Kennedy correctly recognized that school districts
should be allowed to consider the racial impact of zone-based and other
generalized assignment plans on the education offered to their students. Thus, five
Justices (Justice Kennedy and the four dissenters) agreed that schools must have
some flexibility in designing policies that endeavor to achieve the educational
benefits of increased racial diversity and decreased racial isolation, and, at least
where those policies do not classify individual students by race, can do so without
triggering strict scrutiny. See id. at 788-789 (Kennedy, J., concurring); id. at 863-
868 (Breyer, J., dissenting).3
Indeed, even the Parents Involved plurality appeared to apply this principle.
The majority briefly described Jefferson County’s system of assigning students by
neighborhood to designated “resides” schools, which were then clustered with
3
Even in situations where strict scrutiny applies because a school district
uses individual racial classifications to assign students, Justice Kennedy and the
four dissenters recognize that promoting K-12 diversity and avoiding racial
isolation are compelling educational interests. See Parents Involved, 551 U.S. at
797-798 (Kennedy, J., concurring); id. at 838-843 (Breyer, J., dissenting). Under
strict scrutiny, however, school districts must show that they assigned students to
schools based on the individual student’s race only after considering race-neutral
alternatives to achieving these compelling interests. See, e.g., id. at 790. As
explained supra, the issue of whether Lower Merion had a compelling interest
need not be addressed here.
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other schools to facilitate integration. 551 U.S. at 716. While the Court went on to
address whether the school district could make individual assignment decisions on
the basis of race, the plurality did not discuss—or disturb—the use of zones and
clusters to promote racial diversity. Ibid. See also id. at 738-739 (distinguishing
two state court cases as factually inapposite because they involved facially neutral,
but race-conscious, assignments ultimately reviewed under the rational basis test).
And as set forth above, neither Justice Kennedy nor the four dissenters would
subject such use of zones or clusters to strict scrutiny. See id. at 788-789
(Kennedy, J., concurring); id. at 863-868 (Breyer, J., dissenting).
c. In stating that not all race-conscious action demands strict scrutiny,
Justice Kennedy acknowledged that school officials are nearly always aware of
racial patterns in their school systems, and must be permitted the flexibility to
consider those patterns when developing school assignment plans that seek to offer
an equal educational opportunity to all students. See Parents Involved, 551 U.S. at
788-789.
Indeed, federal law requires school districts to track data such as
enrollments, performance, and other statistics by race, to help evaluate how well
federal funding recipients are ensuring that all students have equal access to
education. For example, the purpose of Title I of the Elementary and Secondary
Education Act of 1965, as amended by the No Child Left Behind Act of 2001, is to
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“ensure that all children have a fair, equal, and significant opportunity to obtain a
high-quality education.” 20 U.S.C. 6301. Academic accountability lies at the core
of the Act, which focuses on the educational success of all students while aiming to
improve academic outcomes for disadvantaged students, including by closing the
achievement gap between minority and nonminority students and between
disadvantaged students and their more advantaged peers. See 20 U.S.C. 6301(1)-
(4). The Act requires each funded State to establish annual measurable objectives
regarding academic proficiency, and requires States and school districts to report
and be held accountable for the disaggregated achievement of “economically
disadvantaged students; students from major racial and ethnic groups; students
with disabilities; and students with limited English proficiency.” 20 U.S.C.
6311(b)(2)(C)(v) (emphasis added); 20 U.S.C. 6311(h)(1)(C)(i) and (h)(2)(B).
Moreover, under the federal Magnet Schools Assistance Program, school
districts may seek grants to support schools that use specialized curricula to
increase academic achievement and bring together students of different
backgrounds and races. See 20 U.S.C. 7231-7231j. In light of federal law, school
districts must be able freely to consider the effect of assignment plans and magnet
programs on the racial composition of schools and the academic achievement of all
students.
- 20 -
Justice Kennedy and the four dissenters also recognized the significant
educational benefits of diversity and the critical role schools play in preparing
students to live and work in a pluralistic society. See Parents Involved, 551 U.S. at
782, 797-798 (Kennedy, J., concurring); id. at 840-843 (Breyer, J., dissenting);
Grutter v. Bollinger, 539 U.S. 306, 330-332 (2003). Allowing schools to consider
the racial impact of zone-based assignment plans helps ensure the creation of
diverse classrooms that often will promote cross-racial understanding and tolerance
while reducing racial prejudice and the experience of minority students as “token”
representatives of their race. See Parents Involved, 551 U.S. at 788-789 (Kennedy,
J., concurring); Grutter, 539 U.S. at 330. See generally 553 Social Scientists
Amicus Br., Parents Involved, Nos. 05-908 & 05-915, 2006 WL 2927079 (Oct. 10,
2006). Diversity-related policies also combat the unequal educational
opportunities often associated with predominantly minority schools and, in some
instances, help lessen the achievement gap between minority and nonminority
students. See Parents Involved, 551 U.S. at 839-841 (Breyer, J., dissenting); 553
Social Scientists Amicus Br. at 10-12.
Justice Kennedy’s framework permits school officials to take action that
brings together students of diverse backgrounds and races and reduces the
educational harms of racial isolation. Conversely, applying strict scrutiny
whenever school administrators take the racial impact of their decisions into
- 21 -
account would discourage schools from implementing policies aimed at improving
the education offered to all students or taking steps necessary to promote equal
educational opportunities. Accordingly, this Court should hold, in accordance with
Justice Kennedy’s pivotal opinion in Parents Involved, that a school district’s
consideration of neighborhood racial demographics in drawing a school
assignment plan that promotes diversity and reduces racial isolation does not
trigger strict scrutiny. Such a holding properly enables school districts to offer an
equal educational opportunity to all students, while still providing enhanced
judicial scrutiny for systems that reduce individual students “to an assigned racial
identity for differential treatment.” Parents Involved, 551 U.S. at 795 (Kennedy,
J., concurring).
2. Neither Arlington Heights Nor Pryor Demands Strict Scrutiny Here
This Court must analyze the nature of a school district’s use of racial
demographics in accordance with Justice Kennedy’s pivotal opinion in Parents
Involved. Plaintiffs overlook that opinion and instead rely on Arlington Heights
and Pryor to argue that racial considerations may never play a role in developing
school assignment plans. Compare Appellants’ Br. 29-30 (“This appeal directly
challenges the district court’s legal conclusion that although Lower Merion’s
actions were not ‘color blind,’ they were neither unconstitutional nor illegal.”),
with Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring) (“In the real
- 22 -
world, * * * [‘color-blindness’] cannot be a universal constitutional principle.”).
Plaintiffs’ reading of those cases is simply incorrect.
a. In Arlington Heights, the Supreme Court addressed a racial
discrimination challenge to a village’s refusal to rezone property to allow for low-
income and middle-income housing. See 429 U.S. at 254. Because the village
denied it acted on discriminatory grounds, the Court had to determine to what
extent, if any, racial discrimination motivated the village’s decision. See id. at
266-268. In doing so, the Court discussed the process by which a court should
consider procedural and substantive departures from existing processes to uncover
discriminatory motive. Ibid. Arlington Heights is often cited as the starting point
for a judicial determination of whether a facially neutral law or policy is motivated
by a racial purpose. See, e.g., Hunt v. Cromartie, 526 U.S. 541, 546 (1999); Reno
v. Bossier Parish Sch. Bd., 520 U.S. 471, 488-489 (1997); Miller v. Johnson, 515
U.S. 900, 913-914 (1995). In this appeal, the district court found that school
officials did consider racial attendance patterns to a limited extent, and the school
officials do not challenge the finding on appeal. Thus, Arlington Heights has little
relevance here.
In Pryor, this Court applied Arlington Heights to the dismissal of a Title VI
challenge to the NCAA’s scholarship and athletic eligibility criteria for incoming
freshman. See 288 F.3d at 552. The NCAA asserted that its goal in adopting these
- 23 -
criteria was to increase graduation rates among black student athletes, and thus that
its only purpose was “to help black athletes * * *, not [to] harm them.” Id. at 565.
Acting at the pleading stage, this Court rejected that assertion because the plaintiffs
“sufficiently allege[d] that the NCAA adopted [the new criteria] for the malevolent
purpose of excluding black student athletes.” Id. at 567. The Court explained that
“well-intentioned or not, express or neutral on its face, a law or policy that
purposefully discriminates on account of race is presumptively invalid and [must]
survive” strict scrutiny. Id. at 566. This Court also distinguished situations in
which decision makers have a “mere awareness of the [racial] consequences of an
otherwise neutral policy” and made clear that such awareness “will not suffice” to
trigger heightened review. Id. at 562 (citing Personnel Adm’r of Mass. v. Feeney,
442 U.S. 256, 277-278 (1979)).
b. Appellants read Arlington Heights and Pryor as holding that any
consideration of race in developing student assignment plans necessarily demands
strict scrutiny. But neither the Supreme Court nor this Court has applied the
discriminatory intent doctrine to demand strict scrutiny of every consideration of
race. To the contrary, the Supreme Court and this Court have applied strict
scrutiny only when governmental action classifies individuals on the basis of race
or is intended to impose a disadvantage on a particular racial group. Thus, in
Pryor, this Court concluded that strict scrutiny applied (at the pleading stage)
- 24 -
because the plaintiffs had alleged that the defendants had increased eligibility
requirements in order to decrease the number of black athletes at NCAA schools.
See 288 F.3d at 565-567.
In its higher-education affirmative action cases, the Supreme Court has
applied strict scrutiny to programs that classify individual applicants on the basis
of race—whether race is considered through a rigid point system or as a factor in a
more holistic analysis. See Grutter, 539 U.S. at 326, 337; Gratz v. Bollinger, 539
U.S. 244, 270 (2003). But it has not applied that scrutiny to programs that do not
classify individuals on the basis of race; indeed, the Court has said that
governments must consider these sorts of facially race-neutral alternatives as a
means of achieving the compelling interest in student body diversity before
adopting the sorts of classifications that trigger strict scrutiny. See Grutter, 539
U.S. at 339-340. In cases involving affirmative action in public contracting, the
Court has similarly stated that governments must consider race-neutral means of
increasing minority business participation before adopting the racial classifications
that are subject to strict scrutiny. See Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 237-238 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469,
509-510 (1989) (plurality). The permissible alternatives that the Court cited in
these cases (decreased emphasis on standardized tests, simplification of bidding
procedures, relaxed bonding requirements, etc.) are often implemented precisely

- 25 -
because they will increase minority enrollment and minority business participation.
Yet the Court has not applied strict scrutiny to them.
Similarly, in its racial gerrymandering cases, the Supreme Court has rejected
claims that the Constitution mandates “a ‘color-blind’ electoral process.” Shaw v.
Reno, 509 U.S. 630, 641-642 (1993). Rather, the Court has applied strict scrutiny
only when a districting plan intentionally dilutes minority voting strength, see
Rogers v. Lodge, 458 U.S. 613 (1982); White v. Regester, 412 U.S. 755 (1973), or
when it “classif[ies] citizen[s] by race,” Shaw, 509 U.S. at 644. See also United
States v. Hays, 515 U.S. 737, 745 (1995) (voter cannot challenge non-dilutive
racial gerrymandering unless “the plaintiff has personally been subjected to a racial
classification”). 4 The Court has held that “race consciousness” in redistricting
does not alone trigger strict scrutiny. Shaw, 509 U.S. at 646. Because “the
legislature always is aware of race when it draws district lines,” the Court has
applied strict scrutiny, absent vote dilution, only when electoral districts “rationally
can be viewed only as an effort to segregate the races for purposes of voting,
without regard for traditional districting principles.” Id. at 642, 646. See Miller,
515 U.S. at 913.
4
Indeed, in his concurrence in Parents Involved, Justice Kennedy cites Bush
v. Vera, a post-Shaw case of nondilutive racial gerrymandering, for the proposition
that strict scrutiny likely does not apply to “mechanisms [that] are race conscious
but do not lead to different treatment based on a classification that * * * define[s]
[individuals] by race.” Parents Involved, 551 U.S. at 789 (citing Bush v. Vera, 517
U.S. 952, 958 (1996) (plurality)).
- 26 -
B. Lower Merion’s Assignment Plan Is Not Subject To Strict Scrutiny
Lower Merion’s assignment plan is not subject to strict scrutiny because it
does not assign students to schools on the basis of an individual student’s race.
Here, Lower Merion merely used neighborhood racial demographics as one
relevant factor among many in determining how best to assign students to schools
while also maximizing the education offered to all students.
1. The Plan Does Not Use Race To Assign Individual Students To

Schools
Lower Merion’s zone-based assignment plan does not use race as a criterion
for assigning individual students to schools and, as indicated in Justice Kennedy’s
concurrence, is not subject to strict scrutiny on that basis.
Rather, Lower Merion assigns high school students according to two feeder
patterns that draw from existing elementary and middle school assignments. See p.
7, supra. All students follow the feeder patterns unless they are either (a) zoned
for HHS and opt to attend LMHS under the walk zone option, or (b) zoned for
LMHS and elect to attend HHS for its special academic programs. Thus, neither
the initial assignments nor the option programs take account of an individual
student’s race.
Consequently, the Plan subjects similarly situated students of different racial
backgrounds to the same treatment. There are two relevant classes of students in
the HHS feeder pattern: (1) students residing inside the walk zone; and (2)
- 27 -
students residing outside of the walk zone. All students zoned to HHS who live
inside the walk zone can elect to attend LMHS. All students living outside of the
walk zone must attend HHS. While students in South Ardmore and two heavily
white redistricted areas previously had the choice of attending LMHS despite
living outside of the walk zone, they are all now assigned to HHS. Thus, the Plan
treats similarly situated students of different racial backgrounds identically.
Thus, this appeal clearly implicates different considerations than the
Supreme Court’s education cases invalidating plans that linked individual
admissions and assignment decisions to a student’s race. While Plaintiffs
analogize their case to the plans struck down in Parents Involved, it is beyond
dispute that the Plan does not assign individual students to schools on the basis of
their race. Thus, the Plan bears no resemblance to the admissions and assignment
plans that the Supreme Court has subjected to strict scrutiny on the basis of their
sole reliance on an individual student’s race. See, e.g., Parents Involved, 551 U.S.
at 710; Gratz, 539 U.S. at 270; Regents of Univ. of Cal. v. Bakke, 438 U.S. 265,
315-317 (1978).
2. Lower Merion Used Routine Assignment Principles To Develop Its

Zone-Based Plan And Considered Race Only To Assess The Impact Of
Various Alternatives On The Education Offered To Its Students
Lower Merion’s actions are consistent with Justice Kennedy’s vision of
drawing attendance zones with general recognition of neighborhood demographics.

- 28 -
Indeed, in reassigning students to equalize overall high school enrollment, Lower
Merion explicitly relied on routine zoning principles when drawing its attendance
zones, and considered the racial impact of various alternatives for the limited
purpose of maximizing the education offered to all students. Indeed, this type of
plan, considering race alongside routine districting principles, appears to be the
very type of zoning action Justice Kennedy envisioned.
The parties do not dispute that Lower Merion rezoned students to equalize
enrollment at 1250 students per high school. Nor can they dispute that legitimate,
non-racial principles governed the reassignment process. Lower Merion sought to
achieve multiple non-race-based objectives while equalizing overall enrollment:
keep schools at or under capacity; ensure the same number of school buses;
minimize travel times; retain walk zones to the extent possible; and foster some
level of peer continuity. Thus, in developing the Plan, school officials constantly
analyzed the impact of various alternatives on factors having nothing to do with
race, e.g., changes in bus routes, increased travel time, loss of peer continuity, and
projected overall attendance at each school. While the district court found that
school officials considered the projected racial compositions of LMHS and HHS
throughout the reassignment process, the record shows that the racial impact of the
plans was only one consideration among many in rezoning students. Thus, the
- 29 -
district court’s conclusion that the Plan could be fully explained on non-racial
grounds is unsurprising.
Lower Merion’s consideration of how adopting one plan over another might
affect its ability to implement educational programming to increase student
achievement and reduce African-American students’ feelings of racial isolation is
consistent with Justice Kennedy’s concurrence in Parents Involved. In taking such
considerations into account, Lower Merion merely reflected on how its many
rezoning alternatives impacted the education offered to its students. Indeed, in
light of Lower Merion’s efforts to ensure the educational success of all students
and to combat the achievement gap between minority and nonminority students,
the school district rightfully considered the racial impact of its plan. By failing to
do so, Lower Merion could have missed an important opportunity to capitalize on
the educational benefits of increased diversity and decreased racial isolation.
Recognizing as much, Plaintiffs rely heavily on the district court’s finding
that Lower Merion sought to achieve “racial parity” between LMHS and HHS. In
doing so, Plaintiffs engage in a myopic reading of the record. The district court’s
finding that the school district sought to balance the racial compositions of its high
schools must be understood in the context of the court’s other findings that
multiple non-race-based factors motivated the Plan and that at least some, if not all,
of Ardmore was certain to be reassigned because of its proximity to HHS.

- 30 -
Because most of the school district’s African-American students live in
North or South Ardmore, the assignment of those areas inevitably affects the level
of diversity at both high schools. Assigning the entire area to one high school
would result in the isolation of African-American students at the other high school,
a situation that could lead to negative educational experiences for those students.
See p. 20, supra. Conversely, assigning Ardmore students according to the feeder
patterns divides the majority of the school district’s African-American students
between two high schools, thereby increasing racial diversity at LMHS and HHS
while reducing racial isolation for African-American students at HHS. When the
findings are understood in the context of Lower Merion’s neighborhood
demographics, it is clear that the district court used “racial parity” in a sense
entirely different from the arbitrary “racial balancing” the plurality condemned in
Parents Involved, see 551 U.S. at 729-731.
Plaintiffs’ argument that Lower Merion engaged in impermissible racial
balancing because the racial compositions of LMHS and HHS mirror the overall
percentage of African-American students in the school district also fails. Based on
the district court’s findings, approximately 85% of the school district’s African-
American students reside in some portion of Ardmore. Because Ardmore is
assigned to two elementary schools that feed into different high schools of roughly
the same size, any zone-based attempt to reap the educational benefits of diversity
- 31 -
is likely to result in a similar percentage of African-American students at each high
school. Having similar numbers of African-American students at LMHS and HHS
does not mean the Plan is defined by race, however. Significantly, because the
Plan is zone-based and also allows for the voluntary movement of students under
the option programs, it is impossible for Lower Merion to ensure the racial or
ethnic composition of its high schools. Thus, the Plan is unlike the racial quotas
and guidelines struck down in Bakke and Parents Involved.
At bottom, Lower Merion considered the impact of various zone-based plans
on the possible classroom experience of African-American students at HHS, and
on the school district’s ability to offer achievement-related programming at both
high schools, as one factor among many in its decision of how best to equalize
enrollment at 1250 students per school. That Lower Merion considered which plan
best allowed it to reap the educational benefits of increased diversity and reduced
racial isolation while achieving multiple non-race-based objectives does nothing to
change the fact the Plan does not define individual students by race and does not
use race in disregard of traditional assignment principles. Accordingly, strict
scrutiny does not apply.

- 32 -
CONCLUSION
The judgment should be affirmed on alternate grounds.
Respectfully submitted,
CHARLES P. ROSE THOMAS E. PEREZ

General Counsel for the Assistant Attorney General
Department of Education SAMUEL R. BAGENSTOS
Principal Deputy Assistant
Attorney General
s/ Mark L. Gross
MARK L. GROSS
ERIN H. FLYNN
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 514-5361
CERTIFICATE OF BAR MEMBERSHIP
Pursuant to Local Rules 28.3(d) and 46.1(a), I hereby certify that I am
exempt from the Third Circuit’s bar admission requirement as counsel to the
United States.
s/ Mark L. Gross
MARK L. GROSS
Attorney
s/ Erin H. Flynn
ERIN H. FLYNN
Attorney
Date: February 2, 2011

CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Local Rule
31.1(c), I hereby certify that the foregoing Brief For The United States As Amicus
Curiae Urging Affirmance complies with the typeface requirements of Federal
Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal
Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2007 in Times New Roman,
14-point font.
I further certify that the foregoing Brief For The United States As Amicus
Curiae Urging Affirmance complies with the type-volume limitation of Federal
Rule of Appellate Procedure 32(a)(7)(B) because it contains 7000 words,
excluding the parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
Pursuant to Local Rule 31.1(c), I hereby certify that the text of the electronic
brief is identical to the text in the paper copies of this brief. I further certify that a
virus detection program (TREND MICROTM OfficeScanTM Version 8.0) has been
run on the electronic brief, and that no viruses were detected.
s/ Erin H. Flynn
ERIN H. FLYNN
Attorney
CERTIFICATE OF SERVICE
I hereby certify that on February 2, 2011, I electronically filed the Brief For
The United States As Amicus Curiae Urging Affirmance with the Appellate
CM/ECF system for the United States Court of Appeals for the Third Circuit. I
further certify that on February 2, 2011, ten (10) paper copies, identical to the brief
filed electronically, were sent to the Clerk of the Court by Federal Express. The
following counsel will be served electronically by the Appellate CM/ECF system:
David G.C. Arnold Judith E. Harris

davidgcarnold@aol.com jeharris@morganlewis.com
Attorney for Appellants Attorney for Appellee
Christopher M. Arfaa Joshua I. Civin

Attorney for Amicus Appellant jcivin@naacpldf.org
Kimberly A. Liu
kliu@naacpldf.org
Attorneys for Amici Appellees
I further certify that on February 2, 2011, I served the foregoing Brief For
The United States As Amicus Curiae Urging Affirmance by Federal Express on the
following counsel, who are not registered with the Appellate CM/ECF system:
Christina J.F. Grese Kenneth A. Roos

Allison N. Suflas Megan E. Shafer
Morgan, Lewis & Bockius Wisler, Pearlstine, Talone,
1701 Market Street Craig, Garrity & Potash
Philadelphia, PA 19103 484 Norristown Road, Ste. 100
Blue Bell, PA 19422-0000
s/ Erin H. Flynn
ERIN H. FLYNN
Attorney

DOJ Amicus 2-2-11

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Case: 10-3824 Document: 003110427076 Page: 1 Date Filed: 02/02/2011

IN THE UNITED STATES COURT OF APPEALS

STUDENT DOE 1, et al.,

LOWER MERION SCHOOL DISTRICT,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR THE UNITED STATES

CHARLES P. ROSE THOMAS E. PEREZ

STATEMENT OF THE ISSUE ................................................................................. 1

INTEREST OF THE UNITED STATES .................................................................. 2

STATEMENT OF THE CASE .................................................................................. 2

STATEMENT OF FACTS ........................................................................................3

2. District Court Proceedings ................................................................... 8

STANDARD OF REVIEW .....................................................................................12

SUMMARY OF ARGUMENT ...............................................................................13

LOWER MERION’S SCHOOL ASSIGNMENT

A. School Assignment Plans That Rely In Part

1. Parents Involved Distinguished Between

2. Neither Arlington Heights Nor Pryor

TABLE OF CONTENTS (continued): PAGE

B. Lower Merion’s Assignment Plan Is Not Subject

1. The Plan Does Not Use Race To Assign

2. Lower Merion Used Routine Assignment

CERTIFICATE OF BAR MEMBERSHIP

Adarand Constructors, Inc. v. Pena,

Bush v. Vera, 517 U.S. 952 (1996) ..........................................................................25

City of Richmond v. J.A. Croson Co.,

Gratz v. Bollinger, 539 U.S. 244 (2003) ...........................................................24, 27

Grutter v. Bollinger, 539 U.S. 306 (2003).........................................................20, 24

Hunt v. Cromartie, 526 U.S. 541 (1999) .................................................................22

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) ...................................................13

McCutcheon v. America’s Servicing Co.,

Miller v. Johnson, 515 U.S. 900 (1995) ............................................................22, 25

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,

Personnel Adm’r of Mass. v. Feeney,

Pryor v. National Collegiate Athletic Ass’n,

Regents of Univ. of Cal. v. Bakke,

Rogers v. Lodge, 458 U.S. 613 (1982) ....................................................................25

CASES (continued): PAGE

Shaw v. Reno, 509 U.S. 630 (1993) .........................................................................25

Storey v. Burns Int’l Sec. Servs.,

United States v. Hays, 515 U.S. 737 (1995) ............................................................25

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,

White v. Regester, 412 U.S. 755 (1973) ..................................................................25

Civil Rights Act of 1964,

No Child Left Behind Act of 2001,

20 U.S.C. 7231-7231j ..............................................................................................19

IN THE UNITED STATES COURT OF APPEALS

STUDENT DOE 1, et al.,

LOWER MERION SCHOOL DISTRICT,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR THE UNITED STATES

STATEMENT OF THE ISSUE1

Whether strict scrutiny applies to a zone-based school assignment plan that

various zoning alternatives alongside numerous non-racial factors when

developing the plan.

INTEREST OF THE UNITED STATES

Equal Protection Clause of the Fourteenth Amendment in public education, see 42

1964, 42 U.S.C. 2000d, which prohibits discrimination on the basis of race or

national origin by recipients of federal financial assistance. The United States

Department of Education has responsibility for ensuring Title VI compliance, and

STATEMENT OF THE CASE

2009, following a capital improvement program that necessitated equalizing

plaintiffs lost the option to attend LMHS. A40-A43.

42 U.S.C. 1981 and seeking to restore plaintiffs’ choice of schools. A124-A141.